An unregistered mortgage deed is not admissible in evidence to prove the consideration for the mortgage as it is required to be registered under Section 17(1)(c) of the Indian Registration Act.

D. M. BHANDARI, J.

( 1 ) THIS is a Civil Second Appeal in a suit filed by Badri Narain, who is now represented in this appeal by his three sons, Chauthmal, Baboo, Radhey Shyam and Mst. Naraini his widow against Mst. Sanjya defendant-appellant and Bhoora mal, another defendant.

( 2 ) THE case as set up in the plaint is that on the 28h of July 1951, Mst. Sanjya, the defendant-appellant borrowed Rs. 901/-from the plaintiff and in security thereof mortgaged a shop situate in the town of Monoharpur and deliversd possession thereof. It was also agreed that the defendant-appellant shall pay 1 per cent per mensem as interest towards which Rs. 25/-per annum were to be adjusted as rent of the shop. This agreement was recorded in the khata (Ex. P/1) which beam the thumb impression of the defendant-appellant. It is further alleged that the defendant-appellant delivered the possession of the shop but the plaintiff was dispossessed therefrom on the 20th of May 1953 and refused to pay the money borrowed by her. It was further stated that as the khata (Ex. P/1) was also executed in favour of Bhura Mal (Defendant No. 2), he was also made a defendant in the case. The plaintiff prayed for a mosey decree for the amount of Rs. 1,180/with interest. The defendant-appellant denied the execution of the khata as well as taking any loan from the plaintiff Badri Narain. She also pleaded that the document was un-registered, and, as such, it could not form the basis of the suit. The trial court decreed the suit holding that Ex. P/1 was executed by the defendant-appellant and that Rs. 901/-were paid to her at the time of the execution of the khata, by Badri Narain plaintiff. The defendant-appellant filed an appeal before the District Judge, Jaipur District. The learned District Judge agreed with the findings of the trial court and held that although the document was not admissible for creating any charge on the property, yet it was admissible for proving the loan. Hence this Second Appeal on behalf of the defendant-appellant.

( 3 ) BEFORE I refer to the respective contentions of the parties, I may refer to the contests of the khata (Ex. P/1 ). The khata (Ex, P. 1) mentions that Rs. 901/-were borrowed by the executant of the khata on the security of the shop. Thea the details how the consideration of Rs. 901/-passed are given. It is mentioned that rs. 535/- were paid to Bhura Mal Berathi (not Defendant No. 2) and the shop was redeemed from him and the balance of Rs. 366/-was taken for maintenance. Then follow the following conditions which are freely translated in English - "in all, Rs. 901/- were borrowed. Before the shop is redeemed, the aforesaid (money) wish interest shall be deposited; till such deposit was made the executant would not put forward any claim over the shop, and interest shall be added to the aforesaid (money) and Rs. 25/- for one year for the rent of the shop shall be deducted therefrom. "

( 4 ) IT is contended on behalf of the defendant-appellant that Ext. P/ r embodies the tenaas of an usufructuary mortgage which cannot be enforced for want of registration, and as there is no personal covenant to pay any money, the plaintiffs suit must fail. It is also urged that the plaintiff had not paid Rs. 901/- or any other amount to the defendant-appellant at the time of the execution of the khata and ex. P/1 was altogether without consideration and the learned Judge of the lower appellate court has not discussed the evideace with regard to the payment of consideration fully and satisfactorily with the result that be has given a wrong finding on this point.

( 5 ) ON behalf of the respondents, it is urged that in Ex. P/1 there is an agreement to pay interest and also the conditions referred to above which clearly show that the defendant-appellant had agreed to pay the amount borrowed toy her and thus there was an express undertaking on her part to pay the aforesaid amount for which the suit was maintainable even if the charge on the prop